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Petitioner: PAKISTAN INTERNATIONAL AIRLINES CORPORATION VS Respondent: KOURAL CHANNA
1999 P L C (C
1999 P L C (C.S.) 1539
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui, Sh. Ijaz Nisar and Kamal Mansur Alam, JJ
PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman and others
versus
KOURAL CHANNA and others
Civil Appeals Nos. 1900 to 1914 of ,1998, decided on 26th August, 1999.
(On appeal from the judgments of Federal Service Tribunal dated 19‑6‑1998, passed in Appeals Nos. 2683‑K of 1997, 218‑K of 1998, 179‑K of 1998, 212‑K of 1998, 205‑K of 1998, 178‑K of 1998, 2684-K of 1997, 23‑6‑1998 in Appeal No. 70‑K of 1998, 30‑4‑1998, in Appeal No. 2697‑K of 1997, 4‑7‑1998 in Appeals Nos. 226‑K of 1998, 287‑K of 1998, 28‑7‑1998 in Appeals Nos.94‑K of 1998, 95‑K of 1998,‑96‑K of 1998 and 97‑K of 1998 respectively).
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 212(3)‑‑‑Termination of service‑‑‑Reversion to lower groups‑‑‑Leave to appeal was granted by Supreme Court to consider the questions as to whether the enunciation of law by Service Tribunal in respect of application of certain provisions of the Constitution and of the Civil Servants Act, 1973, was correct; whether Service Tribunal was justified in setting aside orders of termination of services and order of reversion to lower groups and whether Service Tribunal was justified in declining to set aside the order of reversion of employee to a‑lower group.
(b) Civil service‑‑
‑‑‑‑ Reversion of employee on account of deficient length of service as required by Service Regulations‑‑‑Validity‑‑‑Relaxation of the condition regarding length of service having been granted by Competent Authority in exercise of power vested in it under the Service Regulations, order of reversion on that account was not sustainable.
(c) Civil service‑‑‑
‑‑‑‑ Re‑employment after termination of services‑‑‑Review Board had recommended re‑employment of employee in same position in which he was at the time his services were terminated‑‑‑Record showed that employee had suffered leg injury while in service and his case appeared to be a case of extreme hardship‑‑‑Competent Authority, on recommendation of Review Board, had granted relaxation in the case of employee in exercise of powers vested in it‑‑‑Validity‑‑‑Such relaxation could not be described as a mala fide exercise of powers or exercise of powers on extraneous consideration‑‑‑No exception could be taken to the order of Competent Authority in circumstances.
(d) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 4 & 2‑A‑‑‑Employee of Corporation or Statutory Body‑‑ Departmental appeal‑‑‑ Necessity‑‑‑Wherever the Service Rules or Regulation applicable to the employee of a Corporation or a Statutory Body had provided for filing of a departmental appeal, such a remedy must be availed before filing appeal before Service Tribunal‑ Where, however, the Service Rules applicable to the employee of a Corporation or Statutory Body did not provide for filing of a review/representation or appeal against the order of departmental authority appeal would directly lie to the Service Tribunal.
(e) Civil service‑‑‑
‑‑‑‑ Departmental appeal‑‑‑Rejection of departmental appeal filed under the Service Regulations by the Appellate Authority without disclosing reasons for such rejection could not be treated as proper disposal of the appeal and such appeal would be deemed to be pending and would be heard and disposed of in accordance with law. The rejection of the departmental appeals by the Appellate Authority without disclosing reasons would not be treated as proper disposal of the appeals.
The disposal of appeal by the Departmental Authority without application of mind and without giving any reason, cannot be treated as, a proper disposal of appeals filed under the Service Regulations. The appeals before Service Tribunal without exhausting the remedy of departmental appeal provided under the Service Regulations were not competent.
Rejection of the departmental appeals without application of mind and without disclosing any reason by the departmental Authority was not a proper and legal disposal of these appeals, the appeals filed before the departmental Authority, shall be deemed to be pending and will be heard and disposed of in accordance with law.
Alan Waraich v. Secretary, Planning and Development Division 1991 SCMR 2330 fol.
(f) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A [as inserted by Service Tribunals (Amendment) Act (XVI of 1997)]‑‑‑Effect of incorporation of S. 2‑A in Service Tribunals Act, 197 3 which is limited m its effect elaborated.
The effect of incorporation of section 2‑A in the Service Tribunals Act, 1973, is limited. It only made available to the aggrieved employees of a statutory corporation, authority, body or organization established by 'or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest, a right of appeal against the order of the Departmental Authority before the Service Tribunal. However; the terms and conditions of such employees continued to be governed by the Rules or Regulations which were applicable to them before incorporation of section 2‑A in the Tribunals Act.
The introduction of section 2‑A in the Service Tribunals Act did not change the status of the employees of the Corporation or Statutory Body into civil servants in so far their terms and conditions of service were concerned. In spite of introduction of section 2=A in the Act, they continue to be governed by the same terms and conditions of service which applied to them before introduction of section 2‑A in the Act. The only effect of introduction of section 2‑A in the Act was that instead of ordinary remedy available to an aggrieved employee of the Bank in respect of his terms and conditions of service, he became entitled to take his grievance before the Service Tribunal established under Article 212 of the Constitution which alone could determine it now.
It is quite clear from the defection of civil servant given in Service Tribunals Act that a civil servant within, the contemplation of Service Tribunals Act, 1973 is a person, who has been or who is a civil servant within the meanings of Civil Servants Act, 1973 or, as the section now stands after amendment of 1973, it also includes a person who is declared to be a civil servant under section 2‑A of the Service Tribunals Act. It is, therefore, quite clear that in order to entitle a person to file an appeal before the Service Tribunal, relating to a grievance in respect 6f the terms and conditions of service, he must be either a "civil servant" as defined in the Civil Servants Act, 1973, or has been declared to be a "civil servant" for the purpose of maintaining his appeal under the Service Tribunals Act
Abdul Jabbar Memon v. Federation of Pakistan 1996 SCMR 1349; Lt Col. Shujaauddin Ahmed v. OGDC 1971 SCMR 566; Shahid Khalil v. PIAC 1971 SCMR 568; R.T.H. Janjua v. NSC PLD 1974 SC 146; Muhammad Yusuf Shah v. PIAC PLD 1981 SC 224; Evacuee Trust Property Board v M. Nawaz 1983 SCMR 1275; Anwar Hussian v. ADBP PLD 1984 SC 194; Principal, Cadet College, Kohat v. M. Shoab PLD 1984 SC 170; Nisar Ahmad v. Chiltan Ghee Mills 1987 SCMR 1836; NBP v. Manzoorul Hasan 1989 SMR 832; Mrs. M.N. Arshad v. Naeema Khan PLD 1990 SC 612; SRTC v. M:A.G. Khokhar 1990 SCMR 1404; KDA v. Wali Khan 1991 SCMR 2434; University of Punjab v. Sardar Ali 1992 SCMR 1093; Anwar Hussain v. ADBP 1992 SCMR 1112; Raziuddin v. PIAC PLD 1992 SC 531; PIAC v. Shahabuddin 1993 SCMR 299; Chairman, WAPDA v. Syed Jamil Ahmed 1993 SCMR 346; Ms. Zeba Mumtaz v. First Women Bank Civil Petition No.62‑K of 1999; United Bank Limited v. Shamim Ahmed Khan and others 1999 PLC (C.S.) 1032 = PLD 1999 SC 990 and Divisional Engineer Phones v. Muhammad Shahid and others 1999 SCMR 1526 = .1999 PLC (C.S.) 1208 ref.
Makhdoom Ali Khan, Advocate Supreme Court for Appellant (in C.As. 1900 to 1907, 1909 to 1914 of 1999) and for (Respondent in C.A. No. 1908 of 1998).
Shahanshah Hussain, Advocate Supreme Court with A. Aziz Khan, Advocate‑on‑Record for Appellant (in C.A. No. 1908 of 1998).
Haider Ali Pirzada, Advocate Supreme Court with A. Aziz Khan, Advocate‑on‑Record for Respondents (in C.As. Nos. 1900 and 1906 of 1998).
Respondent in person (in C. A. No.. 1907 of 1998).
Abdul Mujeeb Prizada, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in C.As. Nos. 1901 to 1905 and 1909 to 1914 of 1998).
Dates of hearing: 25th, 26th, 27th and 28th May, 1999.
JUDGMENT
SAIDUZZAMAN SIDDIQUI, J.‑‑‑Leave was granted by this Court in the abovementioned 15 civil appeals as follows:‑‑
"By this common order, we intend to dispose of the above petitions. Except C.P.L.A. No. 533‑K of 1998, which has been filed by an employee of the Pakistan International Airlines Corporation (PIAC) the remaining all petition have been filed by the PIAC against the judgments of the Federal Service Tribunal (hereinafter referred to as the Tribunal) setting aside the orders of reversion of certain employees to a lower group and the orders of termination of services. ,
2. It may be observed that the Civil Petitions Nos. 490‑K 491‑K, 492‑K, 493‑K, 494‑K, 556‑K and 557‑K of 1998 cover the cases in which the Tribunal has set aside the order of termination of services of the employees through three separate judgments, whereas, in the remaining petitions, except C.P.L.A. No. 533‑K of 1998, the Tribunal has set aside the orders of reversion in respect of the respondents to a lower group. In respect of C.P.L.A. No. 553-K, of 1998, it may be observed that the Tribunal declined the employee's appeal, in which he sought the setting aside of an order whereby he was reverted to a lower group.
3. We have heard Mr. Makhdoom Ali Khan, learned counsel who has appeared for the petitioners in all the above petitions, except in C.P.L.A. No 533‑K of 1998, in which he has appeared for the respondent i.e. PIAC, Mr. Shahanshah Hussain, learned counsel who has appeared for the petitioner in above C.P.L.A. No. 533‑K of 1998, and Mr. Haider Ali Pirzada and Mr. Abdul Mujeeb Pirzada learned counsel for the respondent/caveator.
We are inclined to grant leave to appeal to consider the following questions:‑
(1) Whether the enunciation of law by the Tribunal in respect of application of certain provisions of the Constitution and of the Civil Servants Act is correct.
(2) Whether the Tribunal was justified in setting side the above orders of termination of services and the orders of reversion to lower groups in respect of the respondents in the above petitions, except C.P.L.A. No 533‑K
of 1998, and;
(3) Whether the Tribunal was justified in declining to set aside the order of the petitioner's reversion to a lower Group in the case covered by the above C.P.L.A. No. 533‑K of 1998."
After hearing learned counsel for the parties, we are of the view that as the questions of law and facts arising in these appeals are not identical, it will be convenient to divide these appeals it three different categories according to their subject‑matter, for the purposes of their disposal. We, accordingly, propose to take up Civil Appeals Nos. 1 09.0, 1906, 1907 and 1908 of 1998 together as they relate to reversion of respondents in Civil Appeals Nos. 1900, 1906 and 1907 of 1998 and appellant in Civil Appeal No. 1908 of 1998, who were either working in Pay Group V or VI at the time of their reversion to Pay Group No. IV by the appellants. Similarly, Civil Appeals Nos. 1911 to 1914 of 1998 will be taken up together as they relate to re‑designation of respondents in these appeals in the same pay group without affecting their terms and conditions of service. Civil Appeals Nos. 1901 to 1905, 1909 and 1910 of 1998 will be dealt with together as they relate to termination of services of the respondents in these appeals. Since the allegation against the respondents in the above appeals are different; it is necessary to state briefly the facts in each appeal in order to understand the controversy in its true perspective.
We first take up Civil Appeals Nos. 1900, 1906, 1907 and 1908 of 1998. The facts in brief in these appeals are as follows:‑‑
Civil Appeal No. 1900 of 1998
Koural Shah Channa, respondent in this appeal, was appointed as Material Planner in Group‑III on 1‑1‑1989. He was promoted to Group‑IV as Material Planning Supervisor on 9‑1‑1994. He was not considered for promotion to Group‑V while his two other colleagues namely, Khalid Ahmed (respondent in Civil Appeal No 1906/98) and Ayaz Athar (Appellant in Civil Appeal No. 1908/98) were promoted to Group‑V as Planning Officer'. He, therefore, made a representation to the competent Authority seeking his promotion to Group‑V as Planning Officer in line with the cases of respondent in Civil Appeal No. 1906 and appellant in Civil Appeal No. 1908 of 1998. His representation was accepted and he was, accordingly, promoted to Group‑V on 15‑2‑1996 w.e.f 9‑2‑1996.
Civil Appeal No. 1906 of 1998
Khalid Ahmed, respondent in this appeal, was appointed as Material Planner on 7‑1‑1‑989 in Pay Group‑III. He was promoted as Material Supervisor Planner in Pay Group‑IV on 9‑1‑1994. He was further promoted to Pay Group‑V as Planning Officer on 25‑4‑1994 w.e.f. 1‑6‑1995. He was confirmed as Planning Officer in Pay Croup‑V on 11‑1‑1996.
Civil Appeal No. 1907 of 1998
Razi Ahmed, respondent, in the above appeal was appointed as Sales Assistant in Pay Group‑III on 12‑11‑1976. He was promoted to Pay Group‑IV as Flight Steward on 11‑11‑1978. On 10‑11‑1981, his services were dispensed with under M.L.R. 52. He was recommended for re‑employment in P.I.A. by the Review Board constituted by the Government in the year 1989. He was, accordingly, re‑employed in P.I.A. on 1‑2‑1990 as Flight Steward in Pay Group‑IV. He was promoted as Briefing Officer in Pay Group‑VI on 19‑7‑1995 and was confirmed in that group on 14‑2‑1996.
Civil Appeal No. 1908 of 1998
Ayaz Athar appellant was appointed in Pay Group‑ III as Material Planner on 22‑1‑1989. He was confirmed in that Group on 22,1‑1990 w.e.f. 3‑1‑1989. He was promoted to Pay Group‑IV as Material Planning Supervisor on 8‑2‑1994 w.e.f. 9‑1‑1994. He was later confirmed in that position on 14‑6‑1994 w.e.f. 8‑2‑1994. He was promoted as Planning, Officer in Pay Group‑V on 20‑6‑1995 and was confirmed in that Group on 15‑1‑1996 with effect from 15‑1‑1996.
Respondents in Civil Appeals Nos. 1900, 1906 and 1907 and appellant in Civil Appeal No. 1908 of 19.98 were issued show‑cause notices by the appellants alleging that their promotions in Pay Group‑V were irregular and against the Service Regulation, and they were, accordingly, called upon to show cause why they should not be reverted to Pay Group‑IV. The appellant after hearing them, reverted them to Pay Group‑IV. The precise allegation against the respondents in Civil Appeals Nos. 1900 and 1906 and appellant in Civil Appeal No. 1908 of 1998 was that at the time they were promoted in Pay Group‑V, they did not possess the required length of service. However against respondent in Civil Appeal No. 1907 of 1998, it was alleged that he neither possessed the required length of service nor the required qualification at the time he was promoted to Pay Group‑‑V:
The learned counsel for the appellants contends that under the Service Regulations applicable to the employees of P.I.A. for promotion to Pay Group‑V or VI, the employee must possess at least 5 years service in Group‑IV besides a master degree in 2nd Division in any subject. According to learned counsel for the appellants the respondents in Civil Appeals Nos, 1900 1906. 190'7 and appellant in 1908 of 1998 at the time of their promotion to Pay Group‑V or VI were holding a Bachelor Degree (B.A.) and that too in 3rd Division besides. they also lacked the required 5 years length of service in Pay Group‑IV. On these premises it is contended by the learned counsel for the appellants that the promotion of respondents in Civil Appeals Nos. 1900, 1906 and 1907 and appellant in 1908 of 1998 was contrary to the Service Regulations and as such their reversion to Pay Group‑IV was not open to any exception.
The learned counsel for respondents, on the other hand, contended that their cases were placed before the competent Authority at the time of promotion from Pay Group‑IV to Pay Group‑V or VI and that the competent authority duly relaxed the conditions for length of service as well as qualification for their promotion to Pay Group V or VI. The learned counsel for the appellants admits before us that in so far respondents in Civil Appeals Nos. 1900, 1906 and appellant in 1908 of 1998 are concerned, the only objection against their promotion to Pay Group-V raised in the show‑cause notices issued to them was, that they did not possess the required length of service in Pay Group‑IV. Therefore, the contention of the learned counsel for the appellants that these persons also lacked the prescribed qualification for promotion to Pay Group‑V cannot be entertained. It is also not disputed by the learned counsel for the appellants before us that the promotion of respondents in Civil Appeals Nos. 1900 and 1906 and appellant in 1908 of 1998 to the post of Planning Officer in Group‑V was an internal promotion from amongst the persons holding the posts of Material Planning Supervisor in the management section. The summary prepared on 25‑4‑1995 for promotion of respondent in Civil Appeal No.1906 of 1998 and appellant in Civil Appeal No.1908 of 1998 shows that they were duly recommended by the Administrative Manager to the post of Planning Officer in Pay Group‑V and the management was requested to waive the condition of length of service to meet the required criteria for their promotion to Pay Group‑V as no candidate with the required length of service was available. The summary was cleared through General Manager (Personnel), Director Engineering and Management and was finally approved by the Chairman, who waived the condition of 5 years' service in Group‑IV for promotion to Group‑V. In so far the respondent in Civil Appeal No. 1900 of 1998 (Koral Shah Channa) is concerned, he was not recommended for promotion alongwith respondent in Civil Appeal No.1906 of 1998 and appellant in Civil Appeal No.1908 of 1998. However, he ‑made representation to the concerned authority for his promotion to Pay Group‑V which was accepted and, accordingly, he was also promoted to Pay Group‑V on 15‑2‑1996, after relaxing the condition of length of service. The learned counsel for the appellants has very vehemently contended that at the time respondent in Civil Appeal No 1900 of 1998 was promoted, there was no vacancy in existence in Pay Group‑V. This contention of the learned counsel for the appellants cannot be accepted as no such objection was raised in the show‑cause notice served on him before his reversion to Pay Group‑IV. The appellants also raised no such plea before the learned Service Tribunal at the time of hearing of service appeal of respondent in Civil Appeal No.1900 of 1998. The contention of learned counsel for the appellants that the respondents in Civil Appeals Nos.1900 and 1906 of‑1998 and appellant in Civil Appeal No.1908 of 1998 were promoted in contravention of service, rules also has no merit. It is not disputed before us that the power to relax any one condition of service vested in the Chairman, PIAC and that such power was exercised in favour of respondents in Civil Appeals Nos.1900, 1906 and appellant in Civil Appeal No.1908 of 1998 before their promotion to Group‑V. There is nothing on record before us to show that the Chairman, PIAC while granting relaxation in the condition regarding length of service of respondents in Civil Appeals Nos. 1900, 1906 and appellant in 1908 of 1998 for promotion to Pay Group‑V acted on considerations other than those which were relevant for exercise of such power. There is also nothing on record before us to show that the Chairman, PIAC while relaxing the condition relating to length of service in these cages did not act fairly and honestly and in accordance with the rules. Since the learned Service Tribunal did not find any jurisdictional defect in the exercise of powers by the Chairman, no exception could be taken to the judgment of learned Service Tribunal, setting aside the reversion of respondents in Civil Appeals Nos. 1900 and 1906 of 1998. In so far the case of appellant in Civil Appeal No. 1908 of 1998 is concerned, the learned Service Tribunal dismissed his appeal while in other identical cases (Civil Appeals No. 1900 and 1906 of 1998) the appeals filed by respondents were accepted. There appears to be no distinction between the cases of respondents in Civil Appeals Nos. 1900 and 1906 of 1998 and that of appellant in Civil Appeal No. 1908 of 1998. As we have reached the conclusion that the relaxation of the condition regarding length of service was granted by the Chairman, PIAC in all these cases in exercise of power vested in him under the Service Regulations, the order of reversion of all the 3 persons from Pay Group‑V to Pay Group‑IV was not sustainable in law.
In Civil Appeal No. 1907 of 1998 which is also a case of reversion, the contention of the learned counsel for the appellants is that the respondent in this appeal neither possessed required length of service nor qualification. It is contended by the learned counsel for the appellants that under the relevant rules, the Chairman, PIAC, could only relax one of the conditions of service. It is, accordingly, contended that as 2 conditions were relaxed in this case, therefore, it is distinguishable from the cases of respondents in Civil Appeals Nos. 1900, 1906 and appellant in Civil Appeal No. 1908 of 1998. We find that the case of respondent in Civil Appeal No. 1907 of 1998 is on better footing than the rest of the cases of this category. This respondent was an employee of PIAC since 1976 when his services were terminated under M.L.R. 52. However, he was re‑employed by PIAC after his case was recommended by the Review Board constituted by the Government in the year 1990, in Pay Group‑IV. The post of 'Briefing Officer' in Pay Group‑VI was internally advertised on 10‑6‑1990 with the following conditions of eligibility for the candidates:‑‑
"PAKISTAN INTERNATIONAL AIRLINES
CORPORATION
MANPOWER PLANNING DIVISION
EMPLOYMENT SECTION.
No.EMP: ADV: 17 of 1990
Date; 10th June, 1990
NOTICE FOR INTERNAL RECRUITMENT
(1) Applications are invited from the employees of the Corporation for the following position in Flight Service Department.
(2) Candidates must possess the following qualifications and experience.
BRIEFING OFFICER, PAY GROUP‑VI (J.O. 24 of 1990)
. QUALIFICATIONS 2nd class/'B' grade master degree from a recognized university.
EXPERIENCE Seven years flying experience. Experience of Scheduling/Monitoring of crew rosters will be considered an added qualification.
AGE LIMIT Not to exceed 35 years as on June 30, 1990. Relaxable by seven years in accordance with Admin Manual.
RELAXATIONS Qualifications may be relaxed to Graduation.
ELIGIBILITY Employees in pay groups IV, V and VI having completed at least 5, 3 and one year of service respectively from the date of their initial appointment/last internal selection/promotion and possessing above specifications shall 'only be eligible to apply.
(3) Applications on the prescribed form through respective Admin/Manager Personnel Officer should reached the Employment Manager P.I.A., 42‑T, Block‑6, Dr. Mahmood Hussain Road, PECHS, Karachi 29 not later than July 1, 1990 by official mail only. Applications, received after expiry of the last date fixed for submission of the application will not be entertained. No application will be accepted if delivered by hand by any candidate.
Please attach copies of Matric/Senior Cambridge certificate and other qualifications in support. The plea that certificates are attached in the personal file will not be accepted. Candidates concealing any information called for in the application form will render themselves liable to disciplinary action.
(5) Authorities forwarding application are requested to ensure the eligibility of the applicants in accordance with the laid down job specifications before sending the same to the Employment Section. Admin Managers/Personnel Officers are requested to despatch the Employees Service record on the Prescribed Pro forma for each Applicant. While forwarding the application of the candidates, Department/Section must clearly mention the name of the position on the top left side of the envelope.
The Prescribed Application Dorm is available with the concerned Admin Manager/Personnel Officer and from Employment Office. Karachi. "
The respondent applied for the above post but he was not called for interview. He, accordingly, represented to the Managing Director of PIAC through his letter dated 14‑11‑1994 which reads as follows:‑‑…
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